Bribery of a public official can take one of at least two forms. In the most straightforward case, a public official accepts a one-off bribe in exchange for a particular official act. This kind of one-to-one exchange is illustrated by a recent case out of Puerto Rico, in which a territorial senator agreed to a direct trade: he would support legislation favorable to a local businessman’s security company, and in return he would receive an all-expenses-paid trip to Las Vegas. Things aren’t always so neat, however. Sometimes bribery involves a series of gifts to a public official in exchange for a series of official acts, and seldom do these gifts and official acts line up in a one-to-one fashion. An example of this kind of bribery can be seen in a recent case out of Texas, where, over an extended period of time, a local developer provided a town mayor cash, home renovations, hotel stays, airline upgrades, and even employment, and the mayor repeatedly voted for zoning changes that ultimately allowed a developer to build apartments.

Anticorruption officials in the United States prosecute the latter form of bribery under a “stream of benefits” theory of liability. Rather than requiring prosecutors to demonstrate tit-for-tat trades—in which a specific “thing of value” is offered or exchanged for a specific official act—under the stream of benefits theory unlawful bribery has also occurred when the prosecution can show a “course of conduct of favors and gifts flowing to a public official in exchange for a pattern of official actions favorable to the donor.” Some courts and commentators have described the idea as the briber regularly paying the public official to keep her “on retainer” with the expectation that she will help the briber out as opportunities arise. The stream of benefits theory recognizes that most bribes aren’t one-off trades of a thing of value for a particular official act. Instead, bribery often takes place in the context of a long-term, multifaceted relationship where there’s a general understanding along the lines of “I’ll scratch your back if you scratch mine.” Where gifts flow regularly to the official and the official occasionally acts for the benefit of the gift-giver, it would be difficult for prosecutors to prove that any particular gift instigated a particular official act. But as then-Judge Sonia Sotomayor once reasoned: “[A] reading of the [bribery] statute that excluded such schemes would legalize some of the most pervasive and entrenched corruption, and cannot be what Congress intended.” Accordingly, the stream of benefits theory has been approved by every federal circuit court that has ruled on the issue.

Yet despite the stream of benefits theory’s intuitive appeal, it has recently come under attack. Most prominently, a federal judge threatened to derail the trial of U.S. Senator Robert Menendez before it began by questioning the theory’s continued validity in light of the U.S. Supreme Court’s 2015 decision in the McDonnell case (which, as explained in more detail below, adopted a strict interpretation of what constitutes an “official act” under the U.S. bribery statute). Although the judge in the Menendez case ultimately determined that the stream of benefits theory was still good law, many commentators aren’t so sure. The Cato Institute, for one, speculates that McDonnell’s strict reading of the bribery statute requires the identification of a specific official act to be performed, rather than accepting as adequate the promise of future, undefined official acts in the briber’s favor. Others, like Professor Randall Eliason, argue that the Supreme Court already (albeit implicitly) rejected the stream of benefits theory on those grounds in a 1999 case called Sun-Diamond.

These attacks reflect a broader policy concern: fear that overly broad bribery statutes criminalize ordinary politics. Professor Albert Alschuler, for instance, asserts that the “principal danger” with the stream of benefits theory is that it “invites slippage” from a “quid pro quo requirement” to a “favoritism” standard. Favoritism, he argues, is endemic in politics––a politician will naturally favor allies and stakeholders who have supported him politically (and financially). Criminalizing favoritism is akin to criminalizing innocent political conduct, which, in turn, has far-reaching secondary effects, such as deterring good people from government service and giving prosecutors too much power to enforce the law selectively. The Supreme Court’s decision in McDonnell, though technically on a different issue, also expressed worries about how a “boundless interpretation of the federal bribery statute” could wind up criminalizing ordinary politics.

These fears are overblown. As other commentators have persuasively argued, the stream of benefits theory remains viable, and has not been expressly or implicitly repudiated by the Supreme Court in McDonnell, Sun-Diamond, or elsewhere. (See, for example, here and, on this blog, here.) I agree, but my main argument here concerns the detractors’ underlying policy concern. Put simply: the stream of benefits theory doesn’t criminalize ordinary politics.

To see why, take a look at the federal crime of accepting a bribe, which is committed when:

• a public official
• acts to demand, seek, receive, or accept
• a thing of value
• in exchange for
• and with the corrupt intent to be improperly influenced in
• the performance of an official act.

The stream of benefits theory affects the fourth element—the so-called “quid pro quo” requirement. Specifically, the stream of benefits theory adopts a broad view of the form that the quid pro quo can take: an exchange of a series of gifts for a series of official acts is still a quid pro quo, even if the briber and official don’t trade them in one-to-one episodes.

Those who fear overly broad liability under a stream of benefits theory focus only on how the theory expands what can be considered a quid pro quo. But in doing so, they fail to recognize that the scope of the federal bribery statute is limited by the other elements. These elements, taken together, sufficiently constrain the statute’s scope such that it does not to criminalize ordinary politics. Two other elements in particular ensure that, contrary to the critics’ worry, embracing the stream of benefits theory does not imply that mere “favoritism” will become subject to criminal penalty:

• First, bribery’s “corrupt intent” element demands a showing that the public official participated in a bargained-for agreement (or quid pro quo) with the purpose of being improperly influenced. The presence of such an intentional agreement marks a stark difference between bribery and “mere favoritism.” It distinguishes, for instance, the “[v]ague expectations of some future benefit” associated with typical campaign contributions from the concrete understanding that recurring payments to the official will result in agreed-upon official actions under specified circumstances. What’s more, proving the existence of an illicit agreement beyond a reasonable doubt poses a high evidentiary hurdle that is unlikely to yield false positives in instances of “ordinary politics.” Without “smoking gun” evidence such as cooperator testimony or wiretaps (which presumably don’t exist when an official genuinely lacks corrupt intent), prosecutors have tremendous difficulty demonstrating that the official meant to act pursuant to a quid pro quo. In fact, many commentators attributed the unsuccessful prosecution of Senator Menendez to a failure to meet this burden. That case was especially difficult to prove because Menendez and his alleged briber had a well-documented friendship that served as an alternate explanation for their exchanges.
• Second, the narrow interpretation of “official act” adopted by the Supreme Court in McDonnell tightly circumscribed the universe of activities that can expose a public official to bribery liability. McDonnell held that an “official act” requires a formal exercise of government power on a matter pending before the public official. (Examples the Court gave include decisions affecting an agency determination, a lawsuit, or a committee hearing.) By the same token, an “official act” does not include uses of informal influence such as “[s]etting up a meeting, talking to another official, or organizing an event.” The official act element thus leaves officials free to lobby fellow officials on behalf of a constituent or make connections between supporters and other officials. McDonnell’s formal-informal distinction effectively carves out from bribery liability many of the kinds of actions associated with “ordinary politics.”

In view of the strict bounds on liability imposed by these two elements, the risk of the stream of benefit theory criminalizing ordinarily politics is slight. By contrast, invalidating the theory would drive a sizeable wedge between the law and the reality of bribery. And the effect would be strange: officials who agreed to one-off bribes would be criminals; those on retainer would simply be politicians.